Bob Moffit, director of Health Policy Studies at the Heritage Foundation, had an op-ed rejoinder to these criticisms in the Washington Post.
For the record, we think that the law's federal mandate is unconstitutional. Our legal center, led by former attorney general Edwin Meese III, notes that Congress has no authority to force an American to buy any good or service merely as a requirement of being alive.
Yes, in the early 1990s, we, along with other prominent conservative economists, supported the idea of such a mandate. It seemed the only way to solve the "free-rider" problem, in which individuals can, under federal law, walk into any hospital emergency room nationwide and rack up big bills at taxpayer expense.
Our research in the ensuing two decades has led us to realize our initial idea was operationally ineffective and legally defective. Well before Obama was elected, we dropped it. In the spring 2008 edition of the Harvard Health Policy Review, I advanced far better alternatives to the individual mandate to expand coverage, relying on positive tax incentives and other mechanisms to facilitate enrollment in private health insurance. This is what researchers and fact-based policymakers do when they discover new facts or conduct deeper analysis.
This is a satisfactory answer to a fairly serious charge. Unlike Mitt Romney, who sticks to the wisdom of the Massachusetts plan, Mr. Moffitt has backed off one of the central tenets to, and thus the policy foundation for, Romneycare and Obamacare. Romney sticks to his guns on "state laboratory experimentation" and the unconstitutionality of the national mandate while staying silent on the merits of his own plan.
Heritage has taken the smart (and correct) mea culpa that they were wrong on the mandate. They took the mandate to be the solution to the emergency room free-rider problem. Upon seeing the empirical evidence that the free-rider problem was not that severe and that the mandate has not been the answer to the emergency room "crisis", they have acquiesced. Here's Moffitt, again:
The president and his supporters invoke the Heritage Foundation to convince the American people that his health bill is somehow a middle-of-the-road approach. It isn't. So please, Mr. President, stop it.